2024 and the Criminal Referral of Donald Trump

The Jan 6 Committee report tells the story of the criminal President and the political party that enabled him.

Yesterday, a bipartisan congressional committee approved a criminal referral for a former President — and current Presidential candidate — on a series of charges that include insurrection and conspiring to defraud the United States.

Today, we will all wake up and go about our business. Donald Trump will continue to be the frontrunner for the GOP nomination and a legitimate contender to be the next President of the United States. The vast majority of Republicans will continue to stand with Trump — and most will do so enthusiastically. There is a Hitchcockian surreality to the whole thing. In theory, this is the biggest story in all of American life, not just politics. The final report from the January 6th Committee was far from show-stopping. This is not the fault of the January 6th Committee, which has done excellent work over the last many months, grabbing the attention of an easily distracted nation. The news of the referral has been public for a few weeks, and the final report is being released right before the holidays when news coverage tends to be at its nadir.

It would be one thing if Trump was done with politics, living out his days in relative exile in Mar-a-Lago, but he remains a clear and present danger to the United States. Therefore, it’s important to understand the context and political implications of the Committee’s referral.

Will Trump Go to Jail?

Not necessarily.

A criminal referral from Congress has no legal force. It’s the legislative and legal equivalent of a suggestion box submission. This is particularly true on matters where the DOJ is already actively investigating the allegations. Attorney General Merrick Garland appointed a veteran prosecutor named Jack Smith as Special Counsel to investigate Trump’s involvement in the attempted insurrection and the classified documents stored at Mar-a-Lago. The referral sent yesterday will likely have no impact on the timing or outcome of Smith’s investigation.

So, why send the referral? Doesn’t the vote from a committee filled with Democrats and anti-Trump Republicans create an opportunity for Trump and the MAGA media to paint this as a partisan “witch hunt?”

First, the January 6th Committee already uncovered heretofore unknown evidence of Trump’s involvement that will play a role in the DOJ’s investigation. That evidence is part of the report. It’s also very possible that the Committee is transmitting evidence to the DOJ that is not yet public. The Committee created a roadmap for the DOJ and they want to use it.

Second, not sending a referral because of fears that Trump will weaponize it is an abdication of moral and legal responsibility as well as political malpractice. Trump and his media allies would use the absence of a referral as evidence of his innocence. In a polarized nation where nearly half the country voted for Trump despite mountains of misdeeds, the failure to send a referral would easily create a permission structure for those who still want Trump as the captain of their political team.